WHAT IS CONSIDERATION IN THE ANGLO-AMERICAN
LAW OF CONTRACTS?
A Historical Summary.
What is the theory of consideration in contract law under
the Anglo-American legal system?
In order properly to answer this question it will be helpful
to consider, first, contract law in England prior to the sixteenth
century, and, second, contract law in England and the United
States since the sixteenth century.
CONTRACT LAW IN ENGLAND PRIOR TO SIXTEENTH CENTURY.
Prior to the sixteenth century there was no contract law in
England except as it was associated with the action of covenant,.
with the action of debt, and with the procedure in equity.
COVENANT.
Covenant was available before the year 1201, and it has
survived up to the present time, except as it has been supplanted
by debt and assunipsit. In the beginning it is said to have been
an action for the breach of every kind of promise, oral or written, both real and personal; and if it had continued as it began,
it might today cover the entire field of contract iaw. But by
the close of the reign of Edward I (13o7) it had become the
law that, in order to be valid, a covenant must be in writing and
under the seal of the covenantor. Since that time, 'consequently,
the action of covenant has only lain to recover damages for
breach of a sealed promise to d& some particular act.'
In covenant no consideration was necessary to give a cause
of action. All that was required, even after the reign of Edward I, was writing, sealing and delivery, and, in more inodern
times, signing. Yet, unlike debt and assumpsit, as we shall soon
see, covenant was .from the first a remedy for breach of promise; and if it had not been for the limitation on its scope imposed
' l11 Street, Foundations of Legai Liability, 114-126.
(245)
z16
UNIVERSITI' OF PENNSYLVANIA LAW REVIEW
by the law of evidence, that writing-which at that time meant
a writing under seal-should be the only admissible proof, it
would have become co-extensive with the law of agreement.
Then we should have had, not only certain contracts-i. e.,
covenants-requiring no consideration, but we should have had
no contracts requiring 6onsideration. When we realize that it
-as only because of what might be called a historical accident
that this threatened consummation did not result, we begin to
realize how uncertain, to say the least, is the foundation for the
requirement of consideration in Anglo-American contract law.
But, since covenant was restricted to a class of agreements which
every day became narrower and narrower, it was finally sup
planted by another action (assunipsit) which more nearly conformed to the demands of society.2
DEBT.
Debt is thought of as a common law. action for the recovery
of money or chattels, due and made certain in amount by contract, by custom, or by record; 3 it is an action even older than
covenant. 4 Later it was broken up into debt for money and
detinue for other chattels, but at first no such distinction was
made. In its early history debt was available in two classes of
cases, surety cases and "delivery-promise" cases.5
In the original surety cases the promisee (pursuer) gave up
his right to take revenge on the pursued at the request of the
surety promisors. The surety took the place of the earlier hostage, and became personally liable for the debt, or composition,
substituted for revenge. By the twelfth century the engagement of the surety had largely lost its early formal character,
and yet it had not as yet taken on the requirements of writing
2Salmond, History of Contract, 3 Select Anglo-American Essays 325.
Equity also was an accomplice before the fact of the demise of covenant by
its refusal to grant specific performance thereof, although it did not always
strictly adhere to its refusal. Jefferys v. Jefferys, Craig & Phillips 139;
Ames' Cases in Equity, 261, 431-435.
III Street, Foundations of Legal Liability, 127.
Stokes v. Trent, A. D. i2oo, Seldon Soc. Pub., Vol. i, Case 38.
Henry, Consideration in Contracts, 26 YALE L. JouL 679-681.
WHAT IS CONSIDERATION IN ANGLO-AMERICAN LAW
and seal.
247
It constituted a simple debt, and was enforced by the
6
action of debt.
In these early surety cases, the Anglo-Saxons .did not look
for detriment to the promisee, but it existed and was the .ground
for the liability of the surety, unless such cases are to be explained on the ground of benefit to the one for whom the surety
made his promise. Hence there was a possibility that detriment to the promisee might in debt have been required for the
enforcement of a promise, and therefore have developed into
consideration. But this did not occur, because, in the reign
of Edward III, the surety contract was merged into the covenant, or contract under seal, and perhaps to some extent into
the "delivery-promise" or "real" contract.7 Hence detriment to
the promisee, or consideration, did not become a requirement for
contracts through the action of debt. This result was left for
another action (special assumpsit), which was developed later.
In the "delivery-promise" cases different conceptions entered. The exchange was a typical transaction of this sort. In
the exchange, if one man delivered chattels for other chattels or
money, which another man agreed to return therefor, but the
latter failed to perform, the latter owed to the former the chattels or money which he had agreed to return, and debt would
lie to recover the same. This law of exchange was extended to
bargain and sale, to contracts of hiring, to obligations of record
and of statute, and to promises under seal, on the theory in the
last case that the sealed promise was a grant which took effect
by its form only. In all cases, except the last three named, there
was a possibility of finding either detriment to the promisee in
the thing surrendered for the promise, or benefit to the promisor in the thing received therefor. If the courts had adopted
the first view, we again might have had introduced early into
English law the idea of detriment to the promisee as consideration for a promise. But the courts, as the ground for recovery,
did not adopt this view, but took the view of benefit to the
promisor, as found in the-quid pro quo doctrine. According to
11 Street, Foundations of Legal Liability, 7-8.
Henry, Consideration in Contracts, 26 YAL I.L JouR. 688; II Street,
Foundations of Legal Liability, 45-47.
248
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
this doctrine, something had to be given or done on one side
for something to be given or done on the other side, so that the
defendant always received something (a benefit) from the plaintiff, in return for which he owed something to the plaintiff."
Whether or not this requirement of quid pro quo might
have come to be called consideration and perhaps might have
become the sole consideration required by the common law for
contracts, had the action of debt grown with the growth of the
law of contracts, there is no means of knowing, because the action of debt did not have this history. It placed the law of
contracts in a worse straight-jacket than did the acion of covenant, and it finally had to go the way of covenant. For one
thing, because of the common law notion of quid pro quo, promises as such were not enforceable. In addition, the method of
trial in actions of debt was by wager of law (a system of
proof by oath with or without the supporting oath of compurgators). These two burdens were too much for debt, and it went
down, so that it could not be revived even by the abolition of
wager of law in England in 1833.9 The action of debt may
now be regarded as practically obsolete both in England and in
the United States. The obligations formerly enforced as contracts by means of the action of debt are now for the most part
enforced by general assumpsit in its varied forms, as quasi contracts. The notions of quid pro quo and of benefit to the promisor may have survived to some extent in modern contract law,
but, if so, it is in connection with the actions of assumpsit, and
any further consideration of such notions will be postponed
until such actions are considered.
EQUITY.
Equity at one period in English history assumed jurisdiction over contracts in a way different from its modern jurisdiction. How extensive this ancient jurisdiction was it is impossible to say, although there is some evidence that it was at one
'Henry, Consideration in Contracts, 26 Y..
L. Jotm. 683; III Street,
Foundations of Legal Liability, 127-143; Salmondi History of Contract, 3
Select'Anglo-American Essays, 323.
'3 and 4 Wrn. iV, c. 42, s. 13.
WHAT IS CONSIDERATION IN ANGLO-AMERICAN L41W"
249
lime very extensive. Lord Mansfield apparently obtained from
this source, or from a common source, his views in regard to
moral consideration and motive as consideration. There is definite proof that equity introduced some of its theories of consideration inlto the Anglo-American law of conveyancing. The
theories of consideration, which were adopted by the chancellors, former ecclesiastics, who developed the law of equity, were
taken from the canon, or ecclesiastical, law. These theories were
not exactly like the theories of consideration (causa) which
obtained in the Roman law, but they were similar to them and
developed from them. In conveyancing, equity required either
what was called a valuable consideration for a bargain and
sale or what was called a good consideration for covenants to
stand seized. For simple promises equity seems to have required other kinds of causa.
The dissatisfaction with the law of covenant and with the
law of debt was so great, that in the course of time the chancellors might have succeeded in introducing into English law
most of the principles of the Roman law of contracts, had it not
been for one thing, and that was the development of the action
of assumpsit, to which we have already referred in connection
with covenant and debt. The action of assumpsit had the same
effect upon the development of the law of consideration. in
equity that it had upon the development of the law of consideration in covenant and debt, but for very different reasons. It is
true that the requirements of equity did not become obsolete,
at least so far as concerns the doctrine of valuable consideration and the notion that an enforceable promise must have
some cause for it (a notion which has had some influence
both in general assumpsit and in special assumpsit); but they
did not continue their 'special and independent development because the equity courts did not continue their special and independent development. As a result, whatever influence equity
might otherwise have had upon the law of contracts was checked
in the law of
and henceforth whatever development there was
10
courts.
law
contracts occurred in the comnmon
14Salmond, History of Contract, 3 Select Anglo-American Essays, 3,2-337.
.50
UXIVERSITY OF PENNSYLVANIA LATV REVIEW
CONTRACT LAW IN ENGLAND AND THE UNITED
STATES SINCE THE SIXTEENTH CENTURY.
With the sixteenth century the law of contracts began an
independent history. For the reasons already set forth, the law
of contracts prior to that time had been becoming more and moie
unsatisfactory, except for the ameliorations which equity afforded. At about this time the action of trespass on the case
and the other actions on the case were having a marvelous development, both because they, like trespass, were tried by a jury
instead of by wager of law, and because thereby the common
law courts were enabled to keep litigants out of the chancery
court. .One of these actions on the case was special assumpsit,
generally regarded as an action on the case in the nature of
deceit. This action soon lent itself to the enforcement of promises as such. oral as well as written; and thereby afforded the
common law courts a substitute for the dying action of covenant on the one hand and for the threatening jurisdiction of
equity on the other. Special assumpsit was allowed in the six1
teenth century in cases of unilateral agreements," and in the
seventeenth century in cases of bilateral agreements 12 (though
these terms were not used until they were coined and given
currency by Judge Dillon and Dean Langdell). Another
one of the actions on the case was general assumpsit, generally
regarded as an action on the case in the nature of debt. General assumpsit supplanted debt. It was first allowed in the sixteenth century for recovery upon an express promise to pay a
simple precedent debt, 3 but it was allowed in the early seven14
teenth century in the case of an implied promise, which meant
that one could sue in general assumpsit wherever there was a
simple debt.
What, if any, was the law as to consideration both in general assumpsit and in special assumpsit?
77, pl. 25; 69, pL 2; 3 &pn. 88.
"Strangeborough and Warner's Case, 4 Leon. 3.
"Edwards v. Burre, Dal. 104, p. 45.
"Slade's Case, 4 Coke 92b.
"Keilw.
IVIIiAT IS CONSIDERATION IN ANGLO-AMERICAN LAIW
"St
GENERAL ASSUMPSIT.
The consideration, if any, in general assumpsit was precedent debt. If this meant anything before the time Mhen general
assumpsit was allowed without an express promise, it meant
nothing thereafter, except that general assumnpsit was concurrent
with debt. Of course, a promise Was made in the creation of
the debt, and in the true debt cases it was made for what the
old law called the consideration of quid pro quo. But this was
not the consideration for the assumpsit since it was a new liability predicated upon the promise implied by law in addition to
the liability involved in the creation of the debt. The .action
of general assumpsit was extended until it was allowed on inferred contracts and on contracts wholly performed except for
the payment of money, because in all these cases there was a
debt, and the real basis for the plaintiff's recovery was the debt
and not the alleged promise.1 " Both the promise and the consideration were fictitious. The form was seized upon to allow
recovery in certain cases where it was desired not to use the action of debt."0 If precedent debt had been a real consideration
and if recovery in general assumpsit had really been upon the
promise, express or implied, precedent debt should have been
sufficient consideration for a promise other than that which the
law would imply, and past consideration should have become as
sufficient consideration as present; but in England at any rate
it has been decided that precedent debt is no sufficient consid-.
eration for any promise other than that which the law would
imply, 17 and past consideration, with one exception, has been
everywhere repudiated.
The exception to which reference has been made includes
those cases where the Roman theory of consideration unmodified
was, under the guise of moral consideration,"' introduced into
U3 Stand. Encyc. of Pro. 166.
2
McKelvey, Common Law Pleading, 26.
"TRann v. Hughes, 7 T. PL 350.
"Lee v. 'Muggeridge. $ Taunton 36.
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UNIVERSITY OF PENNSYLVANIA
LAIV REVIEV
English law in precedent debt cases.' 9 These cases were prom-
20
ises to pay debts barred by a discharge in bankruptcy, promises
22
2
by a discharged surety, ' promises by a former infant, promises by a widow to pay an indebtedness which she incurred when
incapacitated to contract,23 promises to pay a debt barred by the
statute of limitations, 2 4 and promises to rectify a previous mistake or illegality. 25 This was done through the influence of
Lord Mansfield, who disliked the common law, and approved
of the civil law, doctrine of consideration, although he apparently introduced his theory of consideration only into cases of
general assumpsit, where precedent debt was called the consideration, and not into cases of special assumpsit, where, as we
shall see, detriment to the promisee was generally held to be
the consideration; but in introducing this innovation into the
law of general assumpsit he made the consideration the moral
8
obligation rather than the precedent debt.
Recovery is still allowed in the cases above enumerated.
However, now it is frequently said that recovery is on the original obligation, and that the new promise amounts only to a
waiver of a defense which the party could have theretofore interposed.2 7 This new explanation is not sound in the case of
1862."Account
stated may be another exception; Williston, Contracts, Sec.
, Trucinan v. Fenton, Cowper 544; Zavelo v. Reeves et al, 227 U. S.
625; Earle v. Oliver, 2 Exch. 71; Herrington v. Davitt et al., 22o N. Y. 16z.
I Rindge v. Kimball, 124 Mass. 2o9; Hurlburt v. Bradley et al., 94 Conn.
49$' Edmond's Case, 3 Leon. 164; Williams v. Moor, 1x M. & W. 256; Merriam v. Wilkins, 6 N. H. 432; Edgerly v. Shaw, 25 N. H. 514.
'*Lee v. Muggeridge, 5 Taunt. 36.
Little v. Blunt, 9 Pick. 488; Clark v. Jones, 233 Mass. 59z; Carshore
v. Huyck, 6 Barb. 583; Trask v. Weeks, 8I Me. 325; Barber v. Heath, 74
N. H. 270.
"Barnes v. Hedley, 2 Taunt. 184; Early v. Mahon, '9 Johns. 147; Brewster v. Banta, 66 N. J. L. 367; Muir v. Kane, 55 Wash. 131.
'It should be noted that certain problems in cases of promises to pay
debts barred by the statute of limitations, discharges in bankruptcy, etc., can
be explained only b i'rdference to general assumpsit with its requirement of
precedent debt. This explanatiqn is rarely given but it is important to remember it. Williston,- Contracts, $.ecs. i6o, 2o.
"Dusenbury v. Hoyt, 53 N. Y. 521; Carshore v. Huyck, 6 Barb. 583;
Trask v. Weeks et al., 8I Me. 325; Way v. Sperry, 16 Cush, 238; Ilsley v.
Jewett, 3 Mete. 439; State Trust Co. v. Sheldon, 68 Vt. 259; Gillingham v.
Brown, 178 Mass. 417.
WHAT IS CONSIDERATION IN ANGLO-AMERICAN LAW
253
a promise to rectify a mistake or illegality or in the case of
the promise of a married woman; 2, and the validity of the new
explanation given for the decisions is beginning to be questioned in all cases. 2 9 If the suit is on the original, obligation,
why is the extent of the liability governed by the new promise?
And why is it necessary to have a new promise rather than a
mere admission? Again, under our present law of consideration, how can there be a waiver of a defense unless such waiver
is itself supported by a consideration, or creates an estoppel?
The new explanation may have to be abandoned. In that event
what will be the next explanation? The courts will not %kantto
overrule their earlier decisions and deny recovery. If they
do not, and the waiver theory is not tenable, it would seem that
the courts would either have to go back to the old theory of
precedent debt as consideration, or to the theory of moral obligation (causa) as consideration,30 or that they would have to
abandon the requirement of consideration in such cases. If
the last course were taken, it would naturally raise the question,
why consideration should be required in any. cases. Of course, if
both the law of consideration and the law of agreement, as developed in connection with the action of special assumpsit, were
thrown overboard, and promises were enforced simply as promises, there would be no difficulty in enforcing such promises as
are referred to herein.
Is it possible then to say that the different kinds of consideration developed in connection with the action of general assumpsit are now obsolete, and we need pay no further attention
to them? It is possible to explain the cases. where general assumpsit will lie on inferred contracts and on contracts wholly
performed except for the payment of money on the ground that
SEasby v. Mahon, ig Johns. i47;Brewster v. Banta, 66 N. J. L 367;
Lee v. Muggeridge et al., 5 Taunt. 36; Williston, Contracts, Sec. x5o.
s29 YALE L JouR. 94; Williston, Contracts, Secs. 14z--i66.
Merriam et al. v. Wilkins et al., 6 N. H. 432: Edgerly v. Shaw, 25 N.
H. 514; Clark v. Jones, 233 Mass. 591; Barber v. Heath, 74 N. H. -7o; Zavelo v. Reeves et al, 227 U. S. 625; Earle v. Oliver, 2 Exch. 71. In some
United States jurisdictions the doctrine of moral obligation as consideration is
still well recognized. Williston, Contracts; Sees. 149-150.
234
UNJI'ERSITY OF PENNSYLVANIA .LAW REVIEW
there is consideration in the original contract and that general assumpsit is simply an additional remedy. It is possible to
explain most other problems in general assumpsit as quasi contracts, where no law of consideration is involved.3 1 But so long
as the problems referred to in the preceding paragraph remain
and so long as the requirement of consideration remains in our
law, is it possible to say that precedent debt and moral obligation
are no longer consideration in Anglo-American law ? It is sub2
mitted that no one knows.1
SPECIAL Assumrsir.
Special assumpsit was at first regarded as a tort action, and
the root of liability therefor was damage done by deceitful artifice. This damage was a detriment to the promisee, but it followed the promise (or assumpsit); it was not given in exchange
for the promise. In the beginning of the history of this action
the courts did not think of enforcing promises.. If, in any case,
the action appeared to be one merely for breach -of promise, they
refused to allow the action to be maintained, 33 and remitted the
plaintiff to his action of covenant or to no action at all. Yet,
little by little, the courts retreated from their first position until
at last they began to allow special assumpsit for breach of promises. At first they allowed it when a person undertook to do
something and was guilty of malfeasance, and then when he was
guilty of misfeasance, and finally when he was guilty of nonfeasance merely. By going this far they changed the action
of special assumpsit from a tort action into a contract action,
and they at first apparently enforced promises simply because
they were promises.34 If this practice had continued, AngloAmerican law would have reached the point finally reached by
the Roman law and the point which Anglo-American law would
This, of course, eliminates benefit to promisor as consideration so far
as the action of general assumpsit is concerned, with the exceptions named.
= It should be noted that if there is contract liability in general assumpsit, the doctrine of consideration is not the only anomaly therein. The general principles of agreement are lacking.
'Walton v. Brinth, Y. B., 2 Hen. IV. 3, p. 9.
1lurford v. Pili; Cro. Jac. 493.
WHAT IS CONSIDERATION IN. ANGLO-AMERICAN
LAW
255
have reached through the route of covenant if it had been re-leased from the handicap of the seal; but this practice did not
continue. Something happened to make the courts think that,
if they were to enforce promises, those promises must be embodied in a contract and that contract must possess a consideration. If the courts had continued the development of special
assumnpsit as they began it, or if they had been influenced by the
law of covenant, they would not have worried about finding consideration. But, evidently, other influences prevailed. Perhaps
the influential factor was the notion of quid pro quo.in the law
of debt. Perhaps it was the equity notions of consideration.
At any rate the courts took the position, after they came to regard special assumpsit as a contract action, that one of its prerequisites was that some consideration should be given for a
promise. Injury following a failure to keep a promise was not
enough. Hence, in special assumpsit, the doctrine became established that some consideration was necessary for the enforceability of a promise. 5
But what theory of consideration did the courts adopt for
special assumpsit cases? What did they require to be given for
the promise? Did they seize hold of the notion of detriment to
the promisee, which had -always been required in the tort action of special assumpsit and with which they were familiar,
and require this to be given for the promise? Or did they seize
hold of the notion of benefit as it existed in debt? Or did they
adopt the theory that it might be either detriment to the promisee or benefit to the promisor? Or did they adopt the theory
that it must be both detriment to the promisee and benefit to
the promisor? Or did they adopt the equitable theory of consideration? Or did they adopt a combined theory of some sort?
It will be noticed that there are three conceptions running
through this list of questions: (i) detriment to the promisee,
(2) benefit to the promisor, and (3) whether it is one or the.
other or both, it is something given iri exchange for a promise.
It will conduce to clearness to consider these ideas separately.
=Ames, History of Assumpsit, 2 HARv. L. REv. 4-7, 53; "Assumpsit,"
3 Stand. Encyc. of Pro. 170-175, i92.
256
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
BENEFIT TO THE PROMISOR.
Was benefit to the promisor in any form adopted by the
courts as sufficient consideration for a promise? So far as I
kiiow, no one contends that the courts of the sixteenth and seventeenth centuries,, or the- courts of the subsequent centuries,
adopted as the theory of consideration in special assumpsit either
the theory that only benefit to the promisor could be sufficient
consideration, or the theory that there would have to be both
benefit to the promisor and detriment to the promisee. If the
benefit theory has been adopted at all, it has been in the form
that consideration could be either detriment to the promisee or
benefit to the promisor.
If the courts, at the time when they made over the action
of special assumpsit into a contract action from a tort action
and began to require consideration, adopted the theory that benefit to the promisor, as well as detriment to the promisee, could
be a consideration for a promise, they found this part of their
theory, not in anything'peculiar to the action of special assumpsit, but in something extraneous to it. The roots of special
the tort law of deceit (or perhaps tresassumpsit are found .in
the requirement of detriment to the
of
origin
The
pass).
promisee may be found in this territory, but not any such requirement as benefit to the promisor. If the law of contracts,
as it was found in debt, had continued in its two-fold application to surety cases and to "delivery-promise" cases, it is easy
to conceive how such a two-headed consideration as we are dis8 but we know that no such decussing might have resulted; 3
velopment occurred. Did the courts go outside of special assumpsit and import from this or another source the notion of
benefit to..tlie promisor as.consideration? Apparently they imported from'some sourc.e.the notion that consideration, whatever
it was, mustfe the inducement for, or given in exchange for,
the promise.
benefit.
'Henry,
Perhaps they also imported this other notion of
Consideration in Contracts, z6 YALE L
JouR.
694-698.
WHAT IS CONSIDERATION IN ANGLO-AMERICAN LAW
25.'
How stands the law on this point? The books are full of
statements that consideration may be either benefit to the promisor or detriment to the promisee. - But unless there are cases
where benefit to the promisor alone has been held sufficient consideration, these statements will have to be put down as mere
dicta, probably erroneous dicta, and explicable on the ground
of the confusion of special assumpsit with general assumpsit in
the minds of the judges in the seventeenth and eighteenth centuries, and because of the uncertainty caused by removing the
law of consideration from the old foundations of debt and
equity to the new foundation of special assumpsit (and general
assumpsit). Are there any such cases? Shadwell v. Shadwll 7
is sometimes referred to as such a case, and if there are any
such cases, they are of its type. In this case an uncle promised
to pay a certain sum of money for a certain time to his nephew
if he would marry a certain young lady. They were already
engaged to be married, and later the nephew married the young
lady. The court held the uncle's estate liable on his promise,
and found consideration both in the loss which the nephew sustained and in the benefit which the uncle derived. 38 If there
was detriment to the promisee, it was not necessary to find also
benefit to the promisor. The process by which the court found
detriment to the promisee was somewhat far-fetched, but no
more so than that by which it found benefit to the promisor. As
a matter of fact, if the assumptions of the court were true, it
probably found detriment to the promisee but not benefit to the
promisor, and this and subsequent cases which have followed it
30 L. J. Rep. C. P. 145. See also the early case of Reynolds v. Pinbowe,
Cro. Eliz. 429, which of course has been overruled so far as benefit is concerned.
""I a'm aware that a man's marriage with a woman of his choice is
in one sense a boon, and in that sense the reverse of loss; yet, as between
the plaintiff and the party promising an income to support the marriage, it
may be a loss. The plaintiff may have made the most material changes in
his position, and have induced the object of his affections to do the same,
and have incurred pecuniary liabilities resulting in embarrassments, which
would be in every sense a loss if the income which had been promised should
be withheld." "The marriage primarily affects the parties thereto; but in
the second degree it may be an object of interest with'a near relative, and in
that sense a benefit to him."
258
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
should be thus interpreted.3 9 But probably both the fact of
benefit and the fact of detriment were pure assumptions, and if
the case is authority for anything, it is authority for some other
theory of consideration than that of detriment to the promiske
or benefit to the promisor. 40 Most American cases deny recovery in such cases as that of Siadwell v. Shadwell, on the ground
that there is no consideration of any sort.4"
However, either because of statutory enactment or because
the courts have themselves adopted the theory, though we cannot help wondering what reasons moved both legislatures and
courts, some modern American courts have evidently applied
the theory that benefit to the promisor may be sufficient consideration,4 and some text-writers have taken the same position.43
This is the situation so far as there is authority in support
of the proposition that benefit to the promisor is a sufficient
alternative to the requirement of detriment to the promisee. Is
there any authority against this proposition?
Before answering this question it will be well, if possible,
to get a definition of the term "benefit to the promisor." Benefit
has been defined as the acquirement by the promisor of a legal
right to which he would not otherwise have been entitled.44 But
this definlition is given by those courts which define detriment
as forbearance by the promisee of some legal right which he
otherwise would have been entitled to exercise. Other authorities
do not agree upon this definition of detriment. Hence they
might not agree upon this definition of benefit Mrz; Williston
Scotson v. Pegg, 6 Hurl & N. 295; Abbott v. Doane, 163 Mass. 433;
DeCicco v. Schweizer et al., 221 N. Y. 431..
"Ames, Lectures on Legal History, .327-8, 340.
'Ames, Lectures on Legal History, 328.
'Saunders v. Carter, 9T Ga. 45o; Ryon v. Trimble, 22 Ky. Law Rep.
1444; Union Bank v. Sullivan, 214 N. Y. 332. The last case committed the
error of holding that a promisor can give himself consideration for his own
promise. See Williston's criticism, Williston, Contracts, Sec. io2a.
'Morgan, i MINx. L REv. 383; Williston, Contracts, See. x3ia; Corbin, 27 YALE L. JoUR. 368.
"Harlcness v. McKee-Brown Lbr. Co., 17 Okla. 624; Harp. v. Hamilton
(Tex. Ci',. A.) .177 S. W. 56s.
WHAT IS CONSIDERATION IN ANGLO-AMERICAN LAW
259
contends that "benefit correspondingly must mean the receiving
as the exchange for his promise of something which the promisor was not previously entitled to receive," following the analogy of his definition of detriment, which he would define as
the giving or the promise to give something to which a person
has a legal right. That is, with him, benefit means legal benefit,
just as detriment means legal detriment. 4 3 Mr. Corbin, however,
maintains that "it adds nothing to the definition to substitute
for it the term 'legal benefit.' "4 In the law of quasi contracts
the term "benefit" means actual pecuniary benefit. IFs this the
notion of benefit which Mr. Corbin adopts? If so, why should
he not prefer to leave the entire matter of recovery for such conferred benefits to the law of quasi contracts, and, if recovery is
not there as yet sufficiently broad, to develop the law of quasi'
contracts to meet the situation, instead of trying to introduce the
notion of benefit into the law of consideration? 4 It is doubtful
if at the present time there has been or can be formulated a
definition of "benefit to the promisor" which would be generally accepted. This is probably in itself some evidence against
the theory of benefit as consideration.
In the sixteenth and seventeenth centuries, when our modern law of contracts was in the making and when lawyers were
familiar with the notion of benefit as consideration because of
the quid pro quo requirement of debt, there were no cases in
actions of assuinpsit which held that benefit alone could be sufficient consideration; but there were many cases which held that
detriment alone could be sufficient consideration. 48 Since lawyers at that time were familiar with the requirement of benefit,
they urged it upon the courts, but the courts said, "It is not ma'Williston,
Contracts, Sec.
1o2a.
4527 YALE L JouR. 370.
' It would seem that the territory of recovery for conferred benefits is
sufficiently covered by the law of quasi contracts, so that there is no need
of extending the notion into the law of contracts. The mere fact that the
law will create an obligation without a contract is no argument that it should
also make the obligation a contract. The law imposes upon a minor an
obligation to pay for necessaries, but it would not be contended that he
should be liable on his express promise to pay therefor.
'Webb's Case, 4 Leon. jio; Smith v. Smith, 3 Leon. 88; Fooly and
Preston's Case, i Leon. 297; Sir Anthony Sturlyn v. Alhany. Cro. Eliz. 67;
Sands v. Trevilain, Cro. Car. 193; Wheatley v. Low, Cro. Jac. (AS; Coggs
.v. Bernard, 2 Ld. Ray. 92o.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
terial whether the consideration be for the plaintiff's benefit;
for if it be any charge or trouble to the defendant, it sufficeth." 49
"Though the party promising hath no benefit by this, yet this is
a good consideration and the party liable to an action upon the
case." '0 Hence in assumpsit the law of consideration was not
placed upon the old foundation of debt but was placed upon a
new foundation found in tort law.
Of course the mere fact that detriment has been held to be
sufficient consideration and that there are no early cases holding
that benefit might be sufficient consideration, would not prove
that benefit could not be consideration. In order to prove this
there must be cases holding that benefit is not sufficient consideration. Are there any such cases? There have been many
such. Where the courts have held that there was no consideration because there was no detriment to the promisee, though if
they had looked for it they might have found benefit to the
promisor in one or both of the senses above referred to, the
courts have repudiated the notion of benefit to the promisor as
consideration just as truly as though they had expressly so said.,"
Where the courts have held that there was consideration because
of detriment to the promisee but have shown that if they had
not found detriment to the promisee they would have held that
there was no consideration, they also have repudiated the theory that consideration might be benefit to the promisor.a2 There
have been a great number of cases of both of these classes.
Some of these are cited in the notes below. Illustrations of the
first class of cases are found where a third person, because of
some benefit such performance would be to him, makes a promise to a person already under legal obligation to perform a certain act 6r acts for another. 53 There have been many decisions
OKnight v. Rushworth, Cro. Eliz. 469.
Freeman v. Freeman, 2 Bulst. 269.
"White v. Bluett, 23 L. J. (N. S.) Exch. 36; Stilk v. Myrick, 2 Camp.
37o; Miles v. New Zealand, 32 Ch. Div. 266; Keith v. Miles, 39 Miss. 442;
Springstead et al. v. Nees et al., 125 App. Div. (N. Y.) 23o. Note also Foakes
v. Beer, L. R 9 A. C. 6o5, and other cases of discharge.
" DeCicco v. Schweizer, 22 N. Y. 431; Haigh v. Brooks, io Adol. & El.
3o9; Devecmon v. Shaw, 69 11d. i99; Callisher v. Bischoffsheim, L. R. 5 Q.
B. 449. Note also cases of forbearance to sue and forbearance to complain.
.Ame', Lectures on Legal History, 328.
WHAT IS CONSIDERATION IN ANGLO-AMERICAN LAW
261
of this sort,5 4 and recent decisions show no tendency to depart
from the old rule.
One recent case of this sort was that of McDezitt v.
Stokes.5 5 In this case M was under contract with X to drive a
certain mare in the Kentucky Futurity. S was the owner of
other horses related to this mare, whose value would be increased
to the extent of $25,000 if this mare won the race. By the
mare's winning the race he also would be entitled to a prize of
$300 as the owner of her dam. Because of these considerations
S offered to pay M $iooo if he won the race, and M did. According to most of the American cases there was no detriment
to the promisee here, but there was benefit to the promisor according either to Mr. Williston's and the court's definition or
to Mr. Corbin's. The court held that there was no consideration
and that S was not liable to M, thereby repudiating the theory
of benefit to the promisor. It is true the court tried to distinguish between actual benefit and legal benefit and said that there
was no legal benefit, but, when before the contract S had no
legal right against M, the writer is unable to see how he did not
acquire a legal right by his contract. Hence there was legal
benefit, as well as actual benefit, in this case, but the court held
it not sufficient consideration, and the case must therefore -be
held to be direct authority against benefit as consideration.
Another illustration of the first class of cases is found in
such recent cases as Masline v. New York etc. R. Co.,"8 and
Soule v. Bon And Co.0 7 In the Masline case the defendant rail-
way -company offered to pay the plaintiff 5 per cent. of the
gross receipts to be derived from the use of information of value
which the plaintiff said be possessed but whose nature was not
yet disclosed. Plaintiff, by way of acceptance of defendant's
offer, gave the following information: "The. selling of advertis"Johnson's Adm'r v. Seller's Adm'r, 33 Ala. 265; Havana Press Drill
Co. v. Ashurst, 148 111. i5; Schuler v. Myton, 18 Kan. 282; Putnam v.
Woodbury, 68 Me. 58; Sherwin v. Brigham, 39 Ohio St. 137; Gordon v.
Cordon, 56 N. H. 170; Wimer v. Overseers of Poor, 1o4 Pa. 317; Hanks
v. Barron, 95 Tenn. 275; 13 C. J. 356-357.
174 Ky. 515.
"95 Conn. 702.
"Y95 N. Y. S. 574.
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UNIVERSITY OF PENNSYLVANIA
LAW REVIEW
ing space and the displaying of advertisements by defendant on
its railway stations, depots, rights of way, cars and fences."
The question in the case was whether this was sufficient consideration for defendant's promise. The court held that it was not,
because the plaintiff did not give up anything to which he had a
legal right, that'is, there was no legal detriment, "because the
idea was not new nor exclusively within the plaintiff's knowledge, but was perfectly obvious and well known to all men, and
it could have no market value so as to form the consideration for
a contract." Yet the defendant received actual benefit, if not
legal benefit. Hence the court held that benefit alone could
not be sufficient consideration.
A majority of text-writers have taken the position, not only
for themselves but as the position of the courts, that benefit to
the promisor is not sufficient consideration for a promise. z8
What, then, is the law as to whether or not benefit to the
promisor may be consideration for his promise? Historically
there seems to be no argument for it. The decisions against it
are overwhelming in number as compared with those in its support. The term has not even been acceptably defined. Yet the
books are full of dicta to the effect that it may amount to consideration. Judges seem never to be able to find any benefit
sufficiefit to be called consideration but they always seem to hold
out the hope that sometime they may be able to do so. Some
states have given these dicta the force of law by incorporating
them into statutes. A few recent writers have begun to champion the doctrine. Under such circumstances, is benefit to the
promisor consideration, or is it not consideration, in AngloAmerican law? Again, it is submitted, that no one knows.
Hugh E. Willis.
Indiana Uliversity
School of Law
(To be Coitcluded.)
'Langdell, Contracts, Sec. 64; Pollock, Contracts (3d ed.), pp. 9, 185,
rg; Harriman, Contracts, Se. 91; Elliott, Contracts, Sec. 203; II Street,
Found. of Leg. Lia., pp. 67-69, 11o.
"The principle, however, must be considered established that the element which alone gives efficacy to the assumptual promise is detriment
to the promiste." 11 Street, Found. of Leg. Lia., 68.